Is CBD still legal? DEA’s Move May Not Be Legal!

cbd legalThe cannabis industry was in chaos due to the DEA’s attempt to make cannabidiol (CBD) a criminal offence. All round the country, many patients depend on non-psychoactive CBD products to cope with seizures, pain, inflammation, and several other medical conditions. Up till now American markets still carry CBD oils that are Hemp-derived in the open.

Wednesday’s notice by the DEA in the Federal Register, nevertheless, threw that industry into confusion. According to Mark Malone, who is the executive director of the Cannabis Business Alliance, the rule makes room for “unfair barriers for companies with cannabidiol in their products.” “Patients will be forced to find cannabidiol from the unregulated black market.” The CEO of Women Grow, Leah Heise, stated that the rule “has the potential to inflict substantial harm to a legitimate industry that has been operating legally worldwide for over a decade.”

This is not the first time the DEA is trying something like this. In 2001, it attempted to ban hempseed oil, but when it got to court, Doc Bronner trashed the agency.
Chuck Rosenberg, a DEA administrator, used the excuse of bureaucratic technicality to make an aggressive attempt to drag CBD into the Controlled Substances Act as an unlawful Schedule I drug under Federal Laws.

In summary: A new drug code for “marihuana extracts,” was introduced by the DEA. It was in the process of introducing it that Rosenberg stopped to contemplate the issue of non-psychoactive cannabidiol (CBD). Rosenberg made it obvious that the reason why all CBD is classified as illegal by the DEA is because it originates from a plant found in the genus of Cannabis.

In the past two days, lawyers and scholars of the law alike along with the founder of “Harborside Health” Steve DeAngelo, who’s an entrepreneur/activist, have all resisted forcefully. Many people are of the opinion that the DEA’s action is a typical example of agency overreach. This move is however, not new because it was attempted by the agency 15years ago, and it was shut down by Federal courts.

Is my CBD oil against the Law?

Cannabis LAWThat answer ultimately depends on your definition of “illegal.” Not to be amusing, but as soon as you start analysing the advantages of Cannabis Law, things become ambiguous and suspicious. The act of publishing a final rule in the Federal Register this week means basically that the DEA has ventured into untouched legal grounds. There’s a formal report from the agency to the effect that the DEA is certain that CBD products are illegal Schedule I substances.

Does it mean that’s the position of the law? Not particularly. There’s always a chance that a Federal judge will have a different point of view from that of the DEA administrator. There’s reason to believe that Federal courts might not validate the final rules relating to CBD. I’ll explain in a while.

People who patronize CBD products have two different safeguards to protect them.

The Rohrabacher-Farr amendment is the first safeguard, and it bars the Department of Justice (which the DEA belongs to) from interfering with state medical marijuana laws and regulatory systems in any capacity. Products of CBD are protected by this amendment. This also covers the supposed CBD-only states, which permits patients to own cannabidiol oil but not psychoactive THC.

Therefore, the DEA may classify CBD oil as illegal, but the opinion cannot be enforced in any of the twenty eight states that have legalised medical marijuana (along with the district of Columbia), or any of the sixteen states that are CBD-only.

However, there are a couple of warnings about Rohrabacher-Farr. It doesn’t involve Federal Jurisdictions like National Forests or Parks. And Congress will have to authorize the amendment. December 9, was when the most recent re-up occurred, it however, just runs through April 2017, after which it would be necessary to reauthorize once more.

The 2014 Farm Act is the second defence which carved out immunity to the Controlled Substances Act for states participating in hemp growing pilot projects.

This was tested by the DEA in 2001 and they lost.

DEA against CBDExperienced persons in the Cannabis industry who have been in the game for a long time probably experienced déjà vu when they came across the DEA’s final rule this week, seeing as the agency tried to do the same thing more than ten years ago. When it happened, advocates for cannabis and hemp sued the DEA, and won.

In the words of Robert Hoban, an Adjunct Law Professor at the University of Denver. ‘The DEA cannot create a statute. That can only be done by Congress.’ In an interview earlier this week, I was informed by Robert Hoban that “The DEA cannot create a statute,” “That can only be done by Congress.” In addition to being an adjunct professor of law,  Hoban is also a Denver-based lawyer whose specialty is Cannabis Law.

He also asked me to look up a legal precedent involving hemp products: HIA versus DEA, which I did. Here’s what I discovered.

The DEA on 21st October, 2001, published what it termed an “Interpretive Rule” affirming that “any product that contains any amount of THC is a Schedule I controlled substance.” With this rule, all hemp and hempseed products, along with hempseed oil would have been banned.

When it comes to bureaucratic tricks like this, everything depends on timing. In the wake of the 9/11, 2001 “Terror Attacks”, Americans were still numb from the attacks., nobody was thinking about unknown hemp procedures in the Federal Register.

Only a few hempseed oil companies with products that were banned by the rule were thinking about the hemp regulations. Dr. Bronner’s Magic Soaps led an alliance of companies to contest the DEA rule in Federal Court.

DEA medical marijuanaThe DEA would have to adhere to the rules if they want to schedule hemp, because they can’t undertake it without help.

It lasted for more than two years, but finaly, Dr Bronner’s team triumphed over the DEA. In 2003 and 2004, in two different rulings, the US 9th Circuit Court came to a conclusion that non-psychoactive hemp had not been controlled by Congress under the scheduling structure that the Controlled Substances Act introduced.

What this means is that the DEA would have to go through Congress, which is the established rule, before they can schedule hemp. The judges stated that the DEA’s “Interpretive Rule” did not suffice as an interpretation, it was an Act of legislation, which is ultra vires their power because only Congress has the power to pass Legislation. The Court’s conclusion was that, “The DEA has no authority” to regulate drugs not scheduled by Congress.

The status of the new rule is even more uncertain

Cannabis Law statusIt is because of the coalition of cases known as Hemp Industries Association v. DEA, that you can now buy hempseed oil at whole foods. And it just might be the tool with which attorneys of cannabis industry will use to defeat the CBD’s new rule.
The way I see it, this week’s CBD rule might pose more of a challenge for the DEA to defend than the hemp rule did fifteen years ago.

At the least, the issue of hemp was directly addressed by the 2001 hemp rule. This week wasn’t even really about the act by Rosenberg, DEA’s administrator to pull CBD into Controlled Substances Act as a Schedule I drug. Rosenberg essentially banned CBD under the pretence of providing answers to questions about CBD products that didn’t have any other cannabinoids.

But do not be carried away, so long as the entry has to do with a Federal Register, everything is vetted thoroughly by a team of lawyers that work for the government. The DEA and Rosenberg knew exactly what they wanted to achieve.

On Thursday, Hoban stated that his firm was already contacting other cannabis lawyers and specialists from all over the country. So we should expect either a single suit, or a joint action against the DEA soon and they’ll fancy their chances of winning.

In addition to the afore-mentioned Hemp Industries v. DEA cases, Hoban also talked about recent challenges to the DEA’s power to ban Kratom. He stated that “Our team is diligently and expediently working to prepare a recommended strategy in response to the DEA’s Rule.” So don’t be so quick to discard your CBD oil. And watch out!

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